African Democratic Congress (Adc) Vs Alhaji Yahaya Bello (2016)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, JSC
On Tuesday, the 20th day of September, 2016, this appeal was heard by the panel listed above. On that date, I adjudged this appeal unmeritorious and it was for dismissing the appeal on Friday, the 30th day of September, 2016. I shall therefore proceed to state the reasons why the appeal was dismissed.
This appeal is against the judgment of the Court of Appeal delivered on 4th August, 2016 in Appeal No. CA/A/EPT/384/2016 which affirmed the decision of the Kogi State Governorship Election Tribunal delivered on the 9th of June, 2016 dismissing the petition filed by the appellant challenging the return of the respondent as the winner of the election conducted on the 21st of November, 2015 and 5th December, 2015 to the office of Governor of Kogi State. A synopsis of the facts leading to this appeal will suffice.
The appellant was one of the twenty-two (22) political parties which fielded candidates for the election into the office of Governor of Kogi State conducted by the Independent National Electoral Commission on 21st The All Progressives Congress, another registered political party sponsored late Prince Abubakar Audu in the Election. The other political party which made a great showing at the election was the Peoples Democratic Party (PDP) with Capt. Idris Ichalla Wada as its candidate.
At the end of the polls of 21st November, 2015, the Independent National Electoral Commission declared it inconclusive because, according to it, the number of registered voters in 91 polling units, infested with electoral malpractices, exceeded the total number of registered voters in the vote margin between the leading party APC and the PDP, its closest rival. Soon after the declaration of the election inconclusive, the candidate of the APC, Prince Abubakar Audu died. The APC notified INEC of his demise on 23rd November, 2015 and requested for his substitution. The Independent supplementary election in the 91 polling units that were tainted with electoral malpractices.
Sequel to the grant, the APC substituted its deceased candidate, Prince Abubakar Audu with the respondent herein. At the end of the supplementary election, INEC added the votes garnered by the APC in the 21st November, 2015 election to those earned by the respondent and declared the respondent the winner of the governorship election having scored majority of lawful votes.
The appellant was piqued by the declaration and return of the respondent as the winner of the election. Consequently, the appellant, on 24th December, 2015, filed a petition at the Election Petition Tribunal. The said petition was later amended.
As would be expected, the respondent joined issues with the appellant by filling a reply wherein he raised who tendered some electoral documents and called one witness i.e. PW1. In his defence, the respondent fielded one witness as PW1 and tendered some electoral documents.
At the end of the trial, both counsel addressed the tribunal. In a considered judgment delivered on the 9th June, 2016, the trial tribunal declared the petition incompetent and dismissed it for lacking in merit.
Appellant was dissatisfied with the decision. Hence, on 22nd June, 2016, it lodged an appeal at the Court of Appeal. On 4th August, 2016, the lower court delivered its judgment dismissing the appeal for being unmeritorious. On 12th August, 2016, the appellant filed a notice of appeal containing twelve grounds of appeal to challenge the said decision. Briefs were filed and exchanged in accordance with the rules of court.
On the 20th of September, 2016 when this appeal was of some salient points in the briefs. In the appellant’s brief settled by its counsel, A. O. Maduabuchi, Esq., leading another, three issues are distilled for the determination of this appeal. The three issues are:-
What is the effect of a court not resolving all the principal issues submitted to it for resolution?
Whether a fact which has been admitted needs any further proof?
Who is a necessary party in any proceedings?
On the other hand, P. B. Daudu, Esq., leading other counsel submitted two issues on behalf of the respondent. The two issues are stated thus:
Whether the Court of Appeal was justified in affirming the trial tribunal’s decision that INEC was a necessary party to the appellant’s petition.
Whether having regard to the facts and circumstances of this appeal, the Court of Appeal can be faulted in the way the 1st respondent did not win the election by a majority of lawful votes.
Having regard to the complaint of the appellant as evinced in the paragraphs of its petition and moreso, the judgment of the court below appealed against, it is my well considered opinion that the two issues nominated by the respondent are more apt and germane for the determination of this appeal than the issues thrown up by the appellant. I shall accordingly determine this appeal based on the two issues as couched by the learned counsel for the respondent.
Although the respondent has numbered his two issues as numbers 3 and 4, I think it is a typographical error. I hereby renumber them as 1 and 2. The respondent’s first issue is the same as the appellant’s issue 3 and is asking the question whether INEC was a necessary party to this petition?
Electoral Act, 2010 (as amended) and the case of Dangana V. Usman (2013) 6 NWLR (pt. 134) 50 at 80 on rules of interpretation of statutes, and submitted that the intendment of the legislature was that the only necessary party to an election petition is the person whose election is being challenged. According to him, no other person is a necessary party to an election petition except the person whose election is being challenged.
Again, learned counsel relies on Section 137(3) of the Electoral Act, 2010 (as amended) and submitted that where the law makes an event a condition precedent for its coming into effect, the law does not come into effect unless that event has occurred, citing the case of Ugwuanyi V. NICON Ins. Pic (2013) 11 NWLR (pt. 1366) 546. According to learned counsel, the condition precedent to the inclusion of INEC as a party in any election petition is that there must have been a It is a further submission of the appellant that by Section 133(1) of the Electoral Act (supra), the person elected or returned shall be a party to the petition. That the law did not state that INEC should be a party.
Finally, learned counsel opined that INEC does not need to be a party to the petition for it to implement the decision of the Tribunal or Court of Appeal. It is his view that Section 287(2)&(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) enjoins all authorities and persons and other courts that are subordinate to them to implement and enforce such decisions. Learned counsel submitted that INEC was not a necessary party to this petition and urged this court to resolve this issue in favour of the appellant.
Contrary to the position adopted by the appellant above, the learned counsel for the respondent submitted that INEC was and still is a necessary party to this Referring to paragraphs 11 – 16, 17, 18 and 19 – 25 of the petition, learned counsel submitted that the appellant was challenging the legality of INECs decision to add the votes garnered by Prince Abubakar Audu to those garnered by the respondent, the decision of INEC to conduct supplementary election and its decision to return the respondent as governor of Kogi State. Learned counsel submitted that these acts were done by officials of INEC and by Section 137 (3) of the Electoral Act (supra), INEC was not only a necessary party but also a statutory party. He submitted that parties are bound by their pleadings, relying on the case of Kubor V. Dickson (2013) 4 NWLR (pt. 1345) 534 at 589. He urged the court to discountenance the attempt by the appellant to surreptitiously jettison its case at the trial tribunal via its submission in its brief. Learned counsel submitted that by the wording of Section 137(3) (a) of grossly incompetent. Contrary to the position adopted by the appellant in its brief, the respondent submits that where a necessary party is not joined in the case, the court or tribunal lacks jurisdiction to entertain and determine the matter, citing and relying on the case of Tafida V Bafarawa (1999) 4 NWLR (pt. 597) 70. He urged this court to resolve this issue against the appellant. In this case, both the trial tribunal and the Court of Appeal held that INEC was a necessary party to the petition giving birth to this appeal. The two courts below also held that the failure to make INEC a party in this case is fatal to the petition. But who is a necessary party in a case? A necessary party in a case is one whose presence or involvement in the matter is not only necessary but crucial and unavoidable for the effective, effectual, exhaustive, complete and comprehensive subject matter of the proceedings but also who in his absence, the proceeding cannot be fairly dealt with. In other words, the question to be settled in the action between the existing parties in the suit must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green V. Chief Dr. E. T. Dublin Green (1987) NWLR (pt. 61) 481, (1987) LPELR – 1338 (SC), Attorney-General of the Federation V. Attorney General of Abia State (2001) 11 NWLR (pt. 725) 689, (2001) LPELR – 631 (SC), Guda V. Kitta (1999) 12 NWLR (pt. 629) 21,
It is imperative that a person whose presence in a suit is necessary ought to be joined so that he would be bound by the result of the action. Where the issues or questions raised in the action cannot be effectually and completely settled unless a person is a party to the suit,
Transport Nig. Ltd. V. J. B. Olandeen Intl & Ors (2010) LPELR – 2902 (SC).
In the instant appeal, I agree with the submission of the learned counsel for the respondent that the appellant in its petition was indeed challenging the acts of INEC which it did not make a party to its petition. The paragraphs of the petition do certainly disclose the following grouse against INEC by the appellant:
INEC’s decision to add the votes garnered by Prince Abubakar Audu (deceased) to those of the respondent as candidate of the APC.
The conduct of supplementary election with the respondent as candidate of APC.
INEC’s decision to return the respondent as duly elected Governor of Kogi State.
Paragraph 27 of the petition before the Tribunal clearly seeks a relief specifically directing INEC to conduct fresh appellant could not have been carried out by INEC itself but through its electoral officials and returning officers. It is therefore patently wrong for the appellant to argue that it did not make any complaint against INEC officials or INEC itself so as to make it a necessary party. The law is trite that parties are bound by their pleadings. It is too late in the day for appellant to abandon the specific pleadings in the paragraphs of his petition. See Kubor V. Dickson (2013) 4 NWLR (pt. 1345) 534 at 589.
I hold a strong view that the appellant made allegations and complaints against INEC in conducting supplementary election, adding late Audu’s votes to the respondent’s score at the supplementary election and declaring the respondent as winner of the election. Appellant had alleged that the respondent did not win the election by majority of lawful votes. The question is: Who compiled and computed the result? Who decided that the petition be determined without the presence of INEC. Would it have been a fair hearing with regard to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? I do not think so. Section 137 (3) of the Electoral Act 2010 (as amended) states thus:
“137 (3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be:-
(a) made a respondent, and
(b) deemed to be defending the petition for itself and on behalf of its officers or such other persons.”
By the above provision of the Electoral Act (supra), INEC is not only a necessary party but a statutory party. Having agreed with the two courts below on the issue, challenged the actions/decision of INEC in the Kogi State Governorship election held on 21st November, 2015 and 5th December, 2015, it was necessary to make the Commission a party to the petition as it would have been unfair and impossible to determine the issues raised by the appellant in the absence of INEC. Moreover, the use of the word “shall” in Section 137 (3) of the Electoral Act makes it mandatory for INEC to be made a party where complaints are made against it or its officials in an election petition. That section is a mandatory provision because the operative word there is “shall”. The word “shall” when used in a statutory provision imports that a thing must be done. It is a form of a command or mandate. It is not permissive, it is mandatory. See Nwankwo V. Yar’adua (2010) 12 NWLR (pt. 1209) 518, Bamaiyi V. Attorney General of the Federation (2010) 12 NWLR (pt. 727) 468; Ngige V.
On the whole, it is my view that the two courts below were right in holding that INEC was a necessary party in this petition before the trial Tribunal. Issue one, as it turns out, is resolved against the appellant. Before I consider the second issue adopted for the determination of this appeal, I observe that the learned counsel for the appellant has imported a fake issue No. 2 into his brief on page 4 of its brief of argument. Argument on the said strange issue spans pages 4-13 i.e. paragraphs 4.07 to 4.29 thereof. The said issue is said to be predicated on grounds 3, 4, 5, 6, 14,15,16,17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32 and 33 of the notice of appeal. This issue is not for this court for the following reasons: 1. It is an appeal against the judgment of the trial tribunal and this court has no jurisdiction to hear appeals directly from the judgment of the tribunal of appeal challenging the judgment of the Court of Appeal to this court has only 12 grounds of appeal. A scrutiny of the record of appeal reveals that the appellant’s counsel just lifted the said issue with arguments in support from his brief to the Court of Appeal into the present brief of argument. I will regard this as a serious oversight by counsel. I charge counsel to always read and cross check his documents before signing them and sending them for filing. The inclusion of the issue in appellant’s brief to this court has exposed the tardiness of counsel in handling his brief. Be that as it may, the said issue 2 contained on pages 4 -5 of the brief of argument and the arguments in support thereof spanning pages 5 – 13 of the same brief are hereby discountenanced. There is yet another issue 2 on page 13 of the brief of any further proof.”
This issue, to say the least, has no relevance to this appeal. It is not only academic but self-serving. There is nowhere in the judgment of the lower court or even at the trial tribunal where the respondent admitted that he did not score majority of lawful votes. The said issue is also discountenanced. I am now left with issue number 2 in the respondent’s brief which, unfortunately, the appellant did not proffer any argument on it. It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated. See Okongwu V. NNPC (1989) 4 NWLR (pt. 115) 296, Nwankwo V. Yar’adua (2010) 12 NWLR (pt. 1209) 518.
In circumstance of this case, since the appellant has becomes unnecessary as there is nothing to respond to. Secondly, the appellant has no complaint or challenge against the issues so raised. It is his appeal and whatever he does not challenge is deemed admitted. To consider this issue without any complaint by the appellant amounts to an academic exercise. There is no time for such an exercise in this court. Accordingly, this issue is deemed abandoned.
Having resolved the only issue on which both parties exchanged arguments in favour of the respondent, the only thing remaining for me to say is that this appeal is devoid of merit and is accordingly dismissed. The judgment of the Court of Appeal which upheld the judgment of the trial tribunal is hereby affirmed. Parties shall bear their respective costs. It is based on the above reasons that I dismissed this appeal on 20th September, 2016.